Canberra Fresh Group Pty Ltd ATF Canberra Fresh Group Trust v Minister for Home Affairs
[2019] FCCA 842
•5 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CANBERRA FRESH GROUP PTY LTD ATF CANBERRA FRESH GROUP TRUST v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 842 |
| Catchwords: MIGRATION – Review of Tribunal decision – application for approval of nominated occupation of Customer Service Manager – whether jurisdictional error on part of Tribunal – no jurisdictional error established – application dismissed – costs. |
| Legislation: Migration Act 1958 (Cth) ss.140AA, 140GB, 140GB(2), 140GBA, 140GBB, 140GBC, 476. |
| Cases cited: Cargo First Pty Ltd v Minister for Immigration and Border Protection and Anor [2016] FCA 30 SZTDB v Minister for Immigration and Border Protection [2015] FCA 956 Minister for Immigration and Citizenship v SZIAI (2009) ALR 429 Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 Minister for Immigration and Boarder Protection v Stretton [2016] 237 FCR 1 Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 Minister for Aboriginal Affairs v Peko – Wallsend Ltd (1986) 162 CLR 24 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 Yusuf v MIMA (2001) 206 CLR 323 |
| Applicant: | CANBERRA FRESH GROUP PTY LTD ATF CANBERRA FRESH GROUP TRUST |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 36 of 2018 |
| Judgment of: | Judge Tonkin |
| Hearing date: | 22 February 2019 |
| Date of Last Submission: | 22 February 2019 |
| Delivered at: | Canberra |
| Delivered on: | 5 April 2019 |
REPRESENTATION
| Solicitors for the Applicant: | R & J Lawyers |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant shall pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 36 of 2018
| CANBERRA FRESH GROUP PTY LTD ATF CANBERRA FRESH GROUP TRUST |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to section 476 of the Migration Act1958 (Cth) (“the Act”) for review of a decision of the second respondent (Tribunal) made on 17 April 2018. The Tribunal affirmed the decision of the delegate of the first respondent (Minister) made on 22 July 2016 to refuse to approve the applicant’s nomination under section 140GB of the Act and sub regulation 2.72 of the Migration Regulations1994 (“the Regulations”).
Background
The applicant owns and operates a business comprising a retail and wholesale fresh produce store that employs Mr Sadyal. On 5 October 2015 Mr Sadyal applied for a Temporary Work (Skilled) (subclass 457) visa (“457 visa”) with his wife and child as dependent applicants. In order for Mr Sadyal to qualify for the grant of the 457 visa, the applicant applied[1] to the Minister on 18 December 2015 for approval of a nominated occupation of Customer Service Manager (ANZSCO – 149212), nominating Mr Sadyal for that position. The applicant’s sponsorship as an Australian business had been approved on 6 October 2015[2] and was not in issue.
[1] CB1.
[2] CB173 – 174
On 22 July 2016 the Minister refused the application for approval of the nomination not satisfied that the applicant had met the relevant prescribed criteria set out in sub regulation 2.72 of the Regulations. Sub regulation 2.72 (10) (f) of the Regulations required the Minister to be satisfied that “the position associated with the nominated organisation is genuine.”
On 12 August 2016 the applicant applied for review of the decision of the Minister to the second respondent (Tribunal).
On 20 March 2018 the Tribunal conducted a hearing during which the applicant through its director (Toni Irvine) and the nominee (Mr Sadyal) gave evidence and presented argument.
On 17 April 2018 the Tribunal affirmed the decision of the Minister not to approve the nomination on the basis that the Tribunal was not satisfied that the applicant had met the criteria under sub regulation 2.72 (10) (f) of the Regulations.
On 18 April 2018, the Tribunal informed Mr Sadyal of the outcome of the nomination review proceeding and invited him to comment as the refusal of the nomination would result in the consequent refusal of his 457 visa application. Mr Sadyal did not respond to this invitation and the Tribunal affirmed the decision to refuse Mr Sadyal’s 457 visa application on 8 May 2018.
On 18 May 2018 the applicant applied for judicial review of the decision of the Tribunal not to approve the nominated occupation. The matter was heard before me 22 February 2019. Both parties were legally represented and relied on written submissions filed in advance. The Court heard argument and reserved decision.
Evidence
The parties relied on the Court Book (Exhibit C1). The applicant was granted leave to rely on an affidavit filed by Toni Irvine.
Relevant legislation
At the relevant time, section 140GB of the Act (which comprises part of Division 3A) provided as follows:[3]
[3] Compilation No. C2015C00344.
140GB Minister- to approve nominations
(1) An approved sponsor may nominate:
(a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i) the applicant or proposed applicant ·s proposed occupation; or
(ii) the program to be undertaken by the applicant or proposed applicant; or
(iii) the activity to be carried out by the applicant or propose applicant,· or
(b) a proposed occupation, program or activity
(2) The Minister must approve an approved sponsor's nomination if
[4](a) in a case to which section 140GBA applies, unless the sponsor is exempt under section 140GBB or 140GBC-the labour market testing condition under section 140GBA is satisfied,· and
[4] The First Respondent addressed the Court regarding the legislative history with respect to the relevant provisions. This was not challenged by the applicant and was of assistance to the Court.
(b) in any case-the prescribed criteria are satisfied.
The criteria for the purposes of section 140GB[5] were contained in sub regulation 2.72 and 2.73 to the Regulations.[6] Regulation 2.72(2) provided that:
(2) For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination are set out in sub regulations (3) to (12).
[5] Section 140GB of the Division 3A of the Act relating to sponsorship as introduced by the Migration Legislation Amendment (Sponsorship Measures) Act 2003 (Cth). The explanatory memorandum in relation to that Act noted that it has a vital role to play in protecting the Australian Community from the costs and risks associated with the stay of non-citizens in Australia.
[6] Compilation No F20155C00989. In this circumstances of this case, the Applicant was also required to satisfy section 140GBA of the Act however this is not at issue in this proceeding.
Of relevance to the current proceedings is the criteria prescribed by sub regulation 2.72 (10) (f) which provides:
“(10) If the person is a standard business sponsor – the Minister is satisfied that:
(f) the position associated with the nominated occupation is genuine;”
The applicant’s approval as a standard business sponsor had been confirmed by Notice of Decision dated 6 October 2015.[7]
[7] CB175 - 176
Section 140AA of the Act[8] stated that one of the purposes of Division 3A was to provide a framework for a temporary sponsored work visa program in order to address genuine skills shortages and to do so without displacing employment and training opportunities for Australian citizens and Australian permanent residents. Consistent with that purpose, sub regulation 2.72 (10) (f) was added in order to strengthen the integrity of the sponsorship program and subclass 457 visas particularly by the introduction of a “genuineness test” to ensure that the position associated with the nominated occupation was genuinely required to address skills shortages in Australia.[9]
[8] Which was introduced with s140GB of the Migration Amendment (Temporary Sponsored Visas) Act 2003 (Cth)).
[9] By Migration Legislation Amendment Regulation 2013 (No. 3). See Explanatory Statement in respect of Select Legislative Instrument 2013 No. 146.
Both the applicant and the first respondent relied on the decision in Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30. In Cargo First (supra) Justice Flick at paragraph [36] in dismissing an appeal concluded that the construction of sub regulation 2.72(10) (f) by Judge Smith at first instance was correct. At paragraph [30] of Cargo First Pty Ltd v MIBP [2015] FCCA 2091 Judge Smith stated:
“What is required by sub-regulation 2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another. In light of this, the task of the Minister (and of the Tribunal on review of the Minister's decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation. To the extent that the applicant's arguments suggested otherwise, they are rejected.”
The first respondent argued that under sub regulation 2.72 (10) (f) an assessment of whether a position is “genuine” involves an assessment of “whether [the position] really is what it purports to be.” As Flick J explained on appeal, that question can be looked at “from a number of different perspectives” including “the tasks in fact being undertaken.”[10] The applicant did not challenge the construction of the relevant statutory provision in Cargo First (supra).
[10] See also Bakri v Minister for Immigration and Border Protection [2016] FCA 396; Pure Aluminium Windows Pty Ltd v Minister for Immigration & Anor [2018] FCCA 84; Pasricha v Minister for Immigration and Border Protection [2017] FCA 779.
Summary of Tribunal’s Decision
The applicant did not take issue with the summary of the Tribunal’s decision set out at paragraphs [13] – [14] of the first respondent’s submissions as follows:
1. The Tribunal noted that the nomination application must satisfy the requirements of regulation 2.72 of the Regulations and sections 140GB and s140GBA of the Act. At paragraphs [7] – [8], the Tribunal identified that the issue before it was whether the Applicant met the criteria for approval of the nomination under regulation 2.72 (10) (f) that “the position associated with the nomination is genuine.”
2. The Tribunal concluded that it was not satisfied that the position associated with the nomination was genuine and therefore affirmed the delegate's decision as the application did not satisfy regulation 2.72 (10) (f) of the Regulations (at [26]). In particular, the Tribunal did not accept that the duties of the nominated position would include the range of duties and responsibilities required of, and at the skill level of, a Customer Service Manager (at [25]). In support of this finding, the Tribunal:
(a) Considered that the evidence indicated that:
‘…the actual duties of the position associated with the nomination application are to assist the Store Manager Mr Todd Irvine with the recruitment and training of staff who work on the shopfloor, to reconcile cash registers, daily checking of stock to ensure it is correctly presented and stored at the right temperature, to put together wholesale orders, and to give advice to the Store manager about stock’.
(b) found that the role being performed by Mr Sadyal did not encompass the range of tasks that one would expect a Customer Service Manager to be involved with (at [21]). The Tribunal noted that Mr Sadyal dealt with complaints 4-5 times per week, performed reconciliations for loyalty vouchers to customers and gave some direction to staff in their dealings with customers. Contrary to the Applicant's claims, the Tribunal found that it was not persuaded that one of the main tasks of the nominated position involved those of a Customer Service Manager, namely to plan and implement after-sales services to follow up customer satisfaction ( at [ 22]) ;
(c) having regard to the ANZSCO[11] occupational dictionary, noted that the role of Customer Service Manager was of a “highly specialised nature and it involved planning, reviewing and developing policies, programs and procedures to improve customer relations, goods and services and after sales service as well as leading and motivating customer services officers and assisting with the recruitment process” (at [9] and [17-] [18]);
(d) observed that the pre-hearing submission of the applicant's largely replicated the duties of a Customer Service Manager as set out in ANSZCO and gave more weight to the evidence of Mr Sadyal and the director in finding that the actual occupation was different to what it was purported to be (at [23]). The Tribunal concluded that Mr Sadyal’s actual role consisted of providing a range of services in a retail operation and involved supervision of staff providing similar services; and
(e) noted that the business operated two retail outlets, being fruit and vegetable stores (at [20] ). The Tribunal found that it was not persuaded that the business was of a scale to require a dedicated Customer Service Manager (at [21]). It noted that Mr Sadyal and the director had given evidence that the duties of staff overlap and the business appeared retail-focussed. The Tribunal concluded that it was “not satisfied that the duties in the position focus on the development and review of specific policies and procedures relating to customer relations, and the planning and implementing of after sales services in the content of customer relations, at the range and skill level that is indicated by the description of the occupation in ANZSCO (at [25]).”
[11] The relevant Australian and New Zealand Standard Classification of Occupations is ANZSCO - 149212
The Tribunal’s decision
The Tribunal had before it the tasks identified by the applicant in the 457 nomination[12] which included “lead and manage the operations of the customer service team. Develop and review customer service policy and procedures. Report to business manager/owner. Investigate and manage customer complaints and more complex inquiries. Issue refunds or compensation to customers (inter alia).”
[12] CB29
The applicant provided information[13] to the delegate setting out the nature of the position held by the nominee submitting that the nominee had been working with the organization since June 2010 and due to the size and turnover of the business a dedicated Customer Service Manager was required to ensure that the large volume of orders were handled effectively and ensure “a simple and straightforward experience for the customer.”
[13] CB45 - 47
Reference was made to tasks undertaken by the “customer service team” …“responsible for taking orders from clients, both retail and wholesale, coordinating collection and delivery of purchased products. In addition, they must be fully trained in handling complaints, feedback and other customer communication and are required to keep up to date files on all customers…” The applicant indicated that the nominee managed and controlled these operations and was responsible for reviewing the procedures associated with these points of customer contact including ensuring knowledge and compliance with policy and procedures across the team. The Customer Service Manager investigated complaints and issues as they arise within the customer service team “to ensure a high level of customer satisfaction.” The nominee was also required to manage the loyalty program to ensure it met customer expectations.
The applicant provided further information to the delegate[14] which identified that the business had a large turnover of sales and employs 20 staff. The nominee was identified as the “sole managerial authority” with relation to the businesses’ customer service operations and responsible for managing a loyalty program, handling customer complaints and liaising with businesses with respect to the wholesale service provided by the applicant. The applicant asserted that the nominee had been working in the position for the past six years and a previous 457 visa holder had held the position and worked there until the expiry of his visa. It was contended that “this demonstrates the genuineness of the position and the fact it was not created to facilitate the grant of a visa.”
[14] CB79 - 81
The Tribunal observed that the Departmental delegate had concluded that though some of the tasks to be performed by the nominee were consistent with the role of Customer Service Manager “the proposed task that the nominee would undertake in the business did not align substantially with the tasks of the nominated occupation.”[15]
[15] CB 181 [9]
Tribunal hearing
At the review hearing the Tribunal received oral evidence from the applicant regarding the scope and size of the business and the actual tasks performed by the nominee[16] as follows:
·The director for the applicant described the business as a retail wholesale fruit and vegetable market operating five days per week operating from two outlets and the focus of the business was on retail [10];
·There was a store manager (with the position held by the director’s son) and a Customer Service Manager (the position held by the nominee) [10];
·The store manager was involved in ordering stock, reallocation of stock, sourcing products, organising displays, quality control, supervising the day to day operation of the business and managing staff numbers, pricing and signage [10];
·The key aspects of the role of Customer Service Manager included duties such as setting tills, supervising staff, tallying and balancing tills, customer service and determining how to improve customer service. The position was primarily “office based” with 20% of the nominee’s time spent on the floor [12];
·The business served 5000 customers each week and the nominee’s position “operated over the top of all customers and over the top of staff.”[17] The nominee “oversaw both store locations.” [12];
·The objective of the business was to make customer service “something that set the business apart from its competitors.” In determining how to ensure the “best customer service”[18] the nominee’s tasks included ensuring that staff had good product knowledge, implementing a loyalty plan, preparing a weekly newsletter and overseeing “specials.” The nominee dealt with complaints of which there were 4 to 5 each week, predominantly about quality and “mainly from the retail sector of the business”[19] and was involved in putting orders together for wholesale customers and organising delivery of orders, dealing with suppliers, quality issues and balancing invoices and stock [12].
[16] CB182 [10] – [15]
[17] CB182 [12]
[18] CB182 [12]
[19] CB182 [12]
The nominee advised the Tribunal during the hearing as follows:
·In terms of organisational structure the business had a store manager who was involved in the preparation of rosters, approving leave, preparing a regular newsletter for customers and oversight of the business. [13];
·In his role as Customer Service Manager he looked after customers and provided customer assistance, checked customer satisfaction with products and responded to complaints. He put loyalty program forms near the cash registers to encourage customers to sign up with the loyalty program and cross checked vouchers that had been redeemed by customers. [14];
·He provided training to staff on how to use the tills, about product placement and greeting customers. He spent time in the office and on the floor and oversaw the two retail businesses at separate locations. He was involved in checking products, checking vouchers, checking stock, checking specials and interviewing new workers for the business. He indicated there were a few complaints each week predominantly pertaining to staff demeanour at cash registers wherein the nominee would provide advice to staff to smile and be more courteous [15]
Tribunal’s findings
The Tribunal considered the applicant’s pre-hearing submissions,[20] set out the relevant ANZSCO code in the decision[21] and had regard to the requirements of the ANZSCO nominated occupation.[22] The Tribunal then undertook an analysis of the actual tasks performed by the nominee against the position described in the ANZSCO nominated occupation.[23]
[20] CB183 [17]
[21] CB183 – 184 [18]
[22] CB183 [18]
[23] CB184 [20]
The Tribunal found that the “actual duties of the (nominee’s) position are to assist the Store Manager”[24] with recruitment and training of staff, reconciling cash registers, checking of stock, compiling wholesale orders and giving advice to the store manager about stock. The Tribunal concluded that nominee’s actual role was to provide a range of services in a retail operation and in supervising other staff providing similar services.[25]
[24] CB184 [23]
[25] CB185 [23]
The Tribunal found that maintaining good customer service and recruiting, guiding and training staff “would be a standard feature of any retail operation.”[26]
[26] CB 185 [24]
The Tribunal rejected that the actual duties performed by the nominee included the range of duties and responsibilities of and at the skill level of a Customer Service Manager. The store manager was involved in the overall management of the business and as such the Tribunal was not satisfied that in addition to the tasks performed by the store manager there was a need for a designated Customer Service Manager performing the range of duties as described in ANZSCO and at the skill level necessary to the operation of the business.
The Tribunal was not satisfied that one of the main tasks performed by the nominee was to plan and implement after – sales service to follow up customer satisfaction. The Tribunal concluded that the aspects of customer service provided by the nominee flowed directly from providing goods and services and supervising staff and the general day to day operation of the business which the Tribunal concluded “were put into practice on a basic level.”[27]
[27] CB 185 [25]
The Tribunal was not satisfied that the nominee’s duties focused on the development and review of specific policies and procedures relating to customer relations and the planning and implementing of after sales services in the context of customer relations and at the range and skill level indicated by the description in the occupation in ANZSCO.
The Tribunal was not satisfied that the position of Customer Service Manager associated with the nominated occupation was genuine and therefore was not satisfied that the requirements under sub regulation 2.72 (10) (f) had been met. The Tribunal was not satisfied that the applicant met the applicable criteria for the nomination to be approved. The decision under review was affirmed by the Tribunal.
Grounds of review
The applicant pressed all three grounds of review set out in his written submissions supplemented by oral submissions.
Ground 1: The Tribunal decision is unreasonable in the sense of Wednesbury unreasonableness
The applicant argued that the evidence before the Tribunal was “manifestly sufficient enough to convince a reasonable Tribunal to conclude that the business was of such scale and size to require a dedicated Customer Service Manager” and the Tribunal unreasonably formed a contrary view. The applicant was essentially seeking a merits review.
In SZSSG v Minister for Immigration and Border Protection [2018] FCA 670 at [6] Allsop CJ said “It goes without saying that the Court does not engage in merits review; that is, re-find the facts for the purposes of re-finding the facts. But to say that fact finding is within the jurisdiction of a Tribunal and is not reviewable if the findings of fact were open is to either misunderstand fundamentally how jurisdictional error can work or to define it in a formula which is too narrow.” His Honour observed at [7] that Robertson J in the matter of Minister for Immigration and Citizenship v SZRKT[2013] FCA 317; 212 FCR 99 carefully examined the reasoning processes of the Tribunal “in its disbelief of an applicant and found that, effectively, the analytical and weighing process regarding that evidence that was before the Tribunal was so flawed as not to be a proper and adequate exercise of the power submitted to the Tribunal.” Allsop CJ said “What Robertson J did in SZRKT ….was indicate that the close analysis of the factual evaluation and approach by the Tribunal is not merits review; it is part of the process of ensuring or assessing whether serious findings made about applicants have been made lawfully.”
The Tribunal noted that the position of Customer Service Manager involved duties that focused on planning, administering and reviewing customer services and after sales services and maintaining sound customer relations.[28] The Tribunal concluded that the role performed by the nominee did not encompass the range of tasks one would expect of the position of Customer Service Manager.
[28] CB184 [19]
The Tribunal found that the nominee dealt with complaints each week predominantly about quality issues and poor service at cash registers.[29] These complaints were few in number (about 3 or 4 per week) and although the Tribunal accepted that the nominee’s position involved some after sales contact the Tribunal did not accept that the nominee implemented after sales services to follow up customer satisfaction nor provided any strategic planning for the business. The Tribunal was entitled to have regard to the actual tasks being undertaken by the nominee. Moreover it was open to the Tribunal to conclude on the evidence that these tasks though essential to retail management were not such that the range of duties and skills involved required a dedicated position of Customer Service Manager.
[29] CB184 [21]
The Tribunal accepted that the nominee checked the redemption of vouchers in relation to a loyalty program, gave some direction to staff about engaging with customers however the Tribunal was not persuaded that the business was of such a scale to require a dedicated Customer Service Manager and although the businesses had a “large volume of sales”, the business comprised two fruit and vegetable stores focusing on retail with staff multi - tasking and noted that “people’s duties overlap.”[30] The Tribunal found that “consistent with the objectives of a retail outlet, all floor staff who serve customers would have responsibility for ensuring customer service is optimum.”[31] The Tribunal concluded that the business was not of the scale to require a dedicated Customer Service Manager notwithstanding the large volume of sales. Such a finding was open on the evidence.
[30] CB21#184
[31] CB21#184
The Tribunal found that the role of a Customer Service Manager involved more than providing customer service in a retail operation to clients. Consistent with the requirements under ANZSCO - 149212 the role of Customer Service Manager was highly specialised and involved developing and reviewing policies, programs and procedures concerning customer relations, planning and implementing after sales services to follow up customer satisfaction and liaising with other organisational units, service agents and customers to identify and respond to customer expectations. The applicant and nominee did not contend that the nominee was involved in strategic planning for the business.
The Tribunal was not satisfied on the evidence before it, that the duties undertaken by the nominee included the range of tasks required of a Customer Service Manager which would include developing and reviewing policies, programs and procedures relating to customer relations and the goods and services provided.
The applicant argued that the Tribunal misunderstood the nature of the applicant’s evidence and nominee’s evidence as to the nature of the duties to be performed in the position of Customer Service Manager and “misunderstood and erroneously interlocked the roles of a Store Manager and Customer Service Manager.”[32] The first respondent argued that in this respect, the applicant mischaracterised the Tribunal’s reasons.
[32] Paragraphs [17] o [18] of the Applicant’s submissions.
The Tribunal did not conflate the two roles of Store Manager and Customer Service Manager but rather compared the duties undertaken by the Store Manager with the duties undertaken by nominee in assessing whether the position of Customer Service Manager was what it purported to be.
The Tribunal found that the “actual duties of the position are to assist the Store Manager Mr Todd Irvine”[33] with a number of tasks including recruitment and training, reconciling cash registers, checking stock, compiling wholesale orders and giving advice to the store manager about stock. The Tribunal found that the store manager was involved in the overall management of the business and concluded that the nominee’s actual role was to provide a range of services in a retail operation and in supervising other staff providing similar services.[34]
[33] CB184 [23]
[34] CB 185 [23]
The Tribunal found that nominee’s duties in supervising staff and performing general operations of the business on a day to day basis “were put into practice on a basic level”[35] and concluded that the position would not include the range of duties and responsibilities of, and at the skill level of, Customer Service Manager.[36] The Tribunal found that the organisational structure of the business and the nature of the business did not require a Customer Service Manager in addition to a store manager. This finding supported the Tribunal’s conclusion that the nominated position was not what it purported to be. The conclusion reached by the Tribunal was not lacking justification.
[35] CB 185 [25]
[36] CB185 [25]
In determining whether the position contended for was genuine the Tribunal was at liberty to consider the position from a number of different perspectives including whether the position largely replicated the tasks undertaken by the store manager.
The applicant argued that the Tribunal failed to undertake an appropriate inquiry to determine the size of the business with reference to its requirement for the position of Customer Service Manager. In SZTDB v Minister for Immigration and Border Protection [2015] FCA 956 at [26] the Court observed that it was well established that the Tribunal had no general obligation to investigate an applicant’s claim nor a general duty to inquire. In Minister for Immigration and Citizenship v SZIAI (2009) ALR 429 the High Court indicated at [25] that “The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.”
The applicant did not assert there was any specific information critical to the validity of the Tribunal’s decision that might have been elicited if the Tribunal had undertaken an inquiry. No factual basis was asserted by the applicant for the conclusion that a failure to inquire constituted a failure to undertake the statutory duty of review. It was for the applicant to present evidence and arguments to the Tribunal and in the event that the applicant could have presented a more compelling case, that alone does not give rise to jurisdictional error.[37]
[37] Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [30] [35] – [36]
As to whether the decision by the Tribunal was unreasonable in the Wednesbury sense the first respondent argued that “proving unreasonableness is a high bar.” In Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at 364 [68] Justices Hayne, Kiefel and Bell said “The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational if not bizarre decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it….”[38] Further in Minister for Border Protection v Li (supra) at [76] Justices Hayne, Kiefel and Bell JJ held that unreasonableness could be demonstrated by a “conclusion which may be applied to a decision which lacks an evident and intelligible justification.” In his concurring judgment, French CJ at [28] noted that “Wednesbury unreasonableness” extends “beyond unreasonableness expressive of particular error” to situations where a decision-maker who has considered only matters it ought to consider, has “nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.”
[38] In Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at 377 - 378 [113] Justice Gageler disagreed.
In Minister for Immigration and Border Protection v Stretton [2016] 237 FCR 1 at 5 - 6 Allsop CJ said “…..the concept of legal unreasonableness is not amenable to minute and rigidly defined categorisation or a precise textual formulary……….The task is not definitional but one of characterisation: the decision is to be evaluated and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation or an evident or intelligible justification or in being plainly unjust, arbitrary, capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional they are explanations or explications of legal unreasonableness of going beyond the source of power.”
The applicant failed to demonstrate that decision of the Tribunal was so unreasonable as to lack rational foundation or justification or was arbitrary or unjust having regard to the scope and purpose of the statutory source of power. Ground one does not establish any jurisdictional error.
Ground 2: The Tribunal took irrelevant considerations into account in affirming the decision under review
The applicant argued that the Tribunal took into account irrelevant considerations including the objectives of a retail outlet and involvement of the store manager.
With respect to the involvement of the store manager, the role of the store manager and the nominee’s relationship with the store manager was relevant to the determination whether there was a need for a specialised position of Customer Service Manager. The evidence before the Tribunal revealed that the nominee assisted the store manager with tasks (undertaken by the store manager) including recruitment and training of staff who work on the shop floor, reconciling cash registers, daily checking of stock, compiling wholesale orders and giving advice to the store manager about stock. The Tribunal noted that the store manager was involved in the overall management of the business of the retail outlet and was not satisfied that the scale and activities of the business were such to require in addition to a store manager a need for a designated Customer Service Manager who performed the same range of duties.[39] Such evidence was relevant in determining whether the position of Customer Service Manager was what it purported to be.
[39] CB 185 [25]
In Cargo First (supra) Flick J observed that the Minister was entitled himself to reach his own satisfaction in respect of matters set forth in sub regulation 2.72 (10) (f) and it was not the case that “certification” provided by Cargo First necessarily dictated a conclusion by the Minister that the position was “genuine.” [40] Though the applicant in Cargo First performed some sales and marketing duties the Tribunal did not conclude that his position could be characterised as a specialist “sales and marketing manager.” The Tribunal’s reasoning in Cargo First (supra) was informed in part by the evidence that the applicant additionally performed other more general management duties such as payroll, rostering, training and the like. Judge Smith at first instance and Justice Flick on appeal found no error in the Tribunal’s approach in taking into account these other duties performed by the applicant in determining whether the position was “genuine.” In the instant case the Tribunal found that the nominee’s actual role was in providing a range of services in a retail operation and in supervising other staff providing similar services which were a “standard feature of any retail operation.”[41]
[40] Cargo First Pty Ltd v Minister for Immigration and Border Protection and Anor [2016] FCA 30 at 90
[41] CB 185 [24]
It was open for the Tribunal to take into account the objectives of the business, the focus of its operation whether retail or wholesale, the scale and size of the business, and the tasks undertaken by the nominee and other employees in determining whether nominated position was genuine. The fact that “staff in the store have to multi task and people’s duties overlap” and “all floor staff who serve customers would have responsibility for ensuring customer service is optimum” were matters relevant to the Tribunal’s assessment. Further the applicant did not identify any characteristic that was irrelevant to the Tribunal’s determination. I accept the submissions of the first respondent that considerations that are “irrelevant” to a decision are identified by reference to the legislation pursuant to which the decision is made.[42] No such limitation applied in the instant case. Ground two is not made out.
Ground 3: The Tribunal misinterpreted the law or misapplied the law to the facts
[42] Minister for Aboriginal Affairs v Peko – Wallsend Ltd (1986) 162 CLR 24 at 39; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; Yusuf v MIMA (2001) 206 CLR 323 at [74]
The applicant argued that the Tribunal misapplied the law to the facts and misunderstood the task required by sub regulation 2.72 (10) (f). It is apparent that the Tribunal was aware of the decision in Cargo First (supra).[43] The Tribunal understood its role and the task before it[44] heard evidence from the director for the applicant and the nominee[45] made findings[46] and gave reasons.[47] In doing so the Tribunal performed a qualitative analysis of the actual duties undertaken by the nominee against the duties and skills required with respect to the occupation of Customer Service Manager as nominated by the applicant. The fact finding process enabled the Tribunal to address the question whether the position associated with the nominated occupation was “genuine” and reach a conclusion whether the prescribed criteria were satisfied.
[43] CB 183 [16]
[44] CB 181 [1 – 8]
[45] CB 182 [10 – 15]
[46] CB 183 – 184 [16 -22]
[47] CB 185 [24 – 29]
The finding by the Tribunal that “the duties of the position associated with the nominated occupation in the pre-hearing submission largely replicates the duties outlined in ANZSCO” was not conclusive of the fact that the nominee’s position was genuine. In Cargo First Flick J observed that “the very use of the term ‘genuine’ in sub regulation 2.72 (10) (f) namely a word which of itself invites factual inquiry as to whether the ‘position’ is ‘real’ or ‘true.’” (The New Shorter Oxford English Dictionary (1993) ed)).
The Tribunal gave more weight to the director Mrs Irvine’s oral evidence and that of the nominee with regard to what the duties of the position actually consisted of[48] (rather than the pre-hearing submission) and having regard to the whole of the evidence concluded that “the … evidence reflects that the nominee’s actual role is in providing a range of services in a retail operation and in supervising other staff providing similar services.”[49] The Tribunal concluded that “(it) considers the aspects of the position derive directly from the essential nature of retail management and would be a standard feature of any retail operation”[50] and “the Tribunal notes that the store manager is involved in the overall management of the business.”[51] As a result the Tribunal was not satisfied that “the scale and activities of the business are such that there is in addition to (the store manager’s) position a need for a designated Customer Service Manager.”[52] Based on this reasoning the Tribunal was not satisfied that the position of Customer Service Manager associated with the nominated occupation was genuine.
[48] CB 184 [23]
[49] CB 185 [23]
[50] CB 185 [24]
[51] CB 185 [25]
[52] CB 185 [25]
The Tribunal was not bound to accept the evidence presented in the pre- hearing submission unqualified. In so far as the applicant relies on the factual findings in Cargo First (supra), those findings have no relevance with respect to the current matter. No error is apparent with respect to the Tribunal’s application of the law to the facts.
Conclusion
The Court is not satisfied that the applicant has established any jurisdictional error on the part of the Tribunal. The application is dismissed. The applicant shall pay the first respondent’s costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Date: 5 April 2019
3
11
6